Weed v. Ellis, 3 Cai. Cas. 253

Weed v. Ellis

3 Cai. Cas. 253 | N.Y. Sup. Ct. | 1805

Per curiam, delivered by

Livingston J.

The first objection to this award is founded on a want of power in the guardian to submit. Hence it is said, the award is not mutual, and the infant’s rights not concluded.

It is difficult to conceive how it should ever have been doubted whether guardians had this power, or whether they were not bound by their bond, or whether an award *256under these circumstances, did not put an end to ail controversies submitted between the infant and other party. That an infant himself should not bind himself in this way, is right, but for this very reason, a power should be lodged elsewhere; and where can it be so properly intrusted as to the very person who has the care of all his property? for the present plaintiff does not appear a guardian ad litem only, and must therefore be supposed competent to judge whether a suit or arbitration will be most likely to promote the interest of his ward. But this point is settled in Roberts v. Netubold, where it is allowed, that a guardian may submit for an infant, and even if the latter gives a bond himself, it is not void, but only voidable. With this also agrees the civil law, by which, although an infant cannot bind himself by a submission, yet, if any one will become his surety, a remedy may be had against the latter, for the infant’s non-performance.

There is as little reason to say the award is not final. After reciting their authority to settle all controversies between the defendant and infant, the arbitrators award, “ that the “ former shall pay a certain sum to the guardian, and that “ each party shall settle with his own witnesses.” There can be no doubt that payment of this sum to the guardian would operate as a discharge to the defendant for every demand of the infant, and that the award is, of course, sufficiently conclusive. The only remaining objection is, that no profert is made of the award in the replication. That this is necessary, we can find no authority. The action is on the bond, and, in answer to the plea, the award is set forth in hcec verba. This is the usual way, and must be sufficient.* The replication is therefore good, and the plaintiff must have judgment.

Tlie reason why a profert of an award is not required, is, beeauseitis not a deed.